{ "id": 8527177, "name": "RONALD D. LEE, PAMELA L. LEE, WOODROW W. WEAVER, TOMMIE L. WEAVER, STEPHEN E. COOKE, WILMA F. COOKE, ROBERT PLACER and CLAIRE PLACER v. HARVEY L. KECK, Individually, and wife, PATRICIA T. KECK, CORA G. KECK and HARVEY L. KECK, Executor of the Estate of KELLY H. KECK", "name_abbreviation": "Lee v. Keck", "decision_date": "1984-05-15", "docket_number": "No. 8315SC281", "first_page": "320", "last_page": "331", "citations": [ { "type": "official", "cite": "68 N.C. App. 320" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "N.C. Gen. Stat. \u00a7 1-285", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1983, "opinion_index": 0 }, { "cite": "307 S.E. 2d 416", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "64 N.C. App. 211", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526586 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/64/0211-01" ] }, { "cite": "218 S.E. 2d 342", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 303", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568140 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/288/0303-01" ] }, { "cite": "289 S.E. 2d 924", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "56 N.C. App. 683", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523609 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/56/0683-01" ] }, { "cite": "300 S.E. 2d 589", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "61 N.C. App. 339", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521162 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/61/0339-01" ] }, { "cite": "299 S.E. 2d 645", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "307 N.C. 576", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564299, 8564333, 8564271, 8564250, 8564220 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/307/0576-04", "/nc/307/0576-05", "/nc/307/0576-03", "/nc/307/0576-02", "/nc/307/0576-01" ] }, { "cite": "296 S.E. 2d 836", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "59 N.C. App. 508", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526815 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/59/0508-01" ] }, { "cite": "306 S.E. 2d 831", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "64 N.C. 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App.", "case_ids": [ 12170351 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/52/0444-01" ] }, { "cite": "13 A.L.R. 3d 875", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1967, "pin_cites": [ { "page": "936" } ], "opinion_index": 0 }, { "cite": "123 S.E. 2d 112", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "pin_cites": [ { "parenthetical": "rights of parties to a fraudulent transaction" } ], "opinion_index": 0 }, { "cite": "256 N.C. 102", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571307 ], "year": 1961, "pin_cites": [ { "parenthetical": "rights of parties to a fraudulent transaction" } ], "opinion_index": 0, "case_paths": [ "/nc/256/0102-01" ] }, { "cite": "281 S.E. 2d 43", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "parenthetical": "statute bars only enforcement of the invalid contract" } ], "opinion_index": 0 }, { "cite": "303 N.C. 675", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575130 ], "year": 1981, "pin_cites": [ { "parenthetical": "statute bars only enforcement of the invalid contract" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0675-01" ] }, { "cite": "295 S.E. 2d 444", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "306 N.C. 664", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573386 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0664-01" ] }, { "cite": "246 S.E. 2d 795", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "parenthetical": "retention of benefits from a contract sufficient" } ], "opinion_index": 0 }, { "cite": "37 N.C. App. 535", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553906 ], "year": 1978, "pin_cites": [ { "parenthetical": "retention of benefits from a contract sufficient" } ], "opinion_index": 0, "case_paths": [ "/nc-app/37/0535-01" ] }, { "cite": "136 S.E. 2d 279", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1964, "pin_cites": [ { "page": "284-85" }, { "page": "284" } ], "opinion_index": 0 }, { "cite": "262 N.C. 16", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565137 ], "weight": 2, "year": 1964, "pin_cites": [ { "page": "23" }, { "page": "23" } ], "opinion_index": 0, "case_paths": [ "/nc/262/0016-01" ] }, { "cite": "301 N.C. 106", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564102, 8564168, 8564074, 8564145, 8564125 ], "year": 1980, "pin_cites": [ { "parenthetical": "quoting Norburn v. Mackie, 262 N.C. 16, 23, 136 S.E. 2d 279, 284-85 (1964)" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0106-02", "/nc/301/0106-05", "/nc/301/0106-01", "/nc/301/0106-04", "/nc/301/0106-03" ] }, { "cite": "266 S.E. 2d 711", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "714", "parenthetical": "quoting Norburn v. Mackie, 262 N.C. 16, 23, 136 S.E. 2d 279, 284-85 (1964)" } ], "opinion_index": 0 }, { "cite": "47 N.C. App. 98", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548238 ], "year": 1980, "pin_cites": [ { "page": "102", "parenthetical": "quoting Norburn v. Mackie, 262 N.C. 16, 23, 136 S.E. 2d 279, 284-85 (1964)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/47/0098-01" ] }, { "cite": "266 S.E. 2d 610", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 247", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561020 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0247-01" ] }, { "cite": "209 S.E. 2d 734", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "286 N.C. 89", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563517 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/286/0089-01" ] }, { "cite": "296 S.E. 2d 661", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "59 N.C. App. 304", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 8554236 ], "year": 1979, "pin_cites": [ { "page": "342" } ], "opinion_index": 0, "case_paths": [ "/nc-app/42/0337-01" ] }, { "cite": "134 S.E. 2d 186", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "261 N.C. 31", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571586 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/261/0031-01" ] }, { "cite": "93 S.E. 2d 540", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "opinion_index": 0 }, { "cite": "244 N.C. 313", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219578 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/nc/244/0313-01" ] }, { "cite": "295 S.E. 2d 764", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "306 N.C. 752", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574939, 8574900, 8574909, 8574924 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0752-04", "/nc/306/0752-01", "/nc/306/0752-02", "/nc/306/0752-03" ] }, { "cite": "294 S.E. 2d 230", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "58 N.C. App. 624", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525842 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/58/0624-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 8-51", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1981, "opinion_index": 0 } ], "analysis": { "cardinality": 1063, "char_count": 24610, "ocr_confidence": 0.809, "pagerank": { "raw": 3.2788677661353186e-07, "percentile": 0.8706440027970743 }, "sha256": "8a826a24886a7cab0c76e24a0c17e632cc368f8f66ab75cb29c6d835f47d6ae9", "simhash": "1:4376546b343f2c7c", "word_count": 4079 }, "last_updated": "2023-07-14T17:24:21.303361+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WELLS and WHICHARD concur." ], "parties": [ "RONALD D. LEE, PAMELA L. LEE, WOODROW W. WEAVER, TOMMIE L. WEAVER, STEPHEN E. COOKE, WILMA F. COOKE, ROBERT PLACER and CLAIRE PLACER v. HARVEY L. KECK, Individually, and wife, PATRICIA T. KECK, CORA G. KECK and HARVEY L. KECK, Executor of the Estate of KELLY H. KECK" ], "opinions": [ { "text": "BECTON, Judge.\nPlaintiff homeowners purchased lots in a subdivision developed by defendants. The road into the development, Keck Drive, was unpaved when the lots were sold. After several years of increasing tension with defendants over the paving of the road, plaintiffs filed this action. The Complaint alleged that plaintiffs relied on representations by Harvey Keck, both individually and as agent for Kelly Keck, his father (since deceased), and their respective wives, Patricia Keck and Cora Keck, that Keck Drive would be paved. These representations allegedly induced plaintiffs to purchase their lots. The Complaint sought punitive damages for fraud, treble damages for unfair trade practices, and specific performance of an alleged oral agreement to pave the road. Defendants denied any wrongdoing and counterclaimed for libel and resulting physical and mental suffering. The Counterclaim was later summarily disposed of, and plaintiffs took a voluntary dismissal of their claim for specific performance.\nAt trial, plaintiffs presented evidence that at the time the lots were sold, Harvey Keck had represented to each couple that he was working with the State to get Keck Drive paved. Evidence was also presented that Kelly Keck had been the payee of various checks written by plaintiffs for the purchase of land, that Harvey Keck took the checks and delivered receipts signed by Kelly Keck, and that Kelly Keck had made similar representations regarding the paving of Keck Drive. The land sold was owned by the entireties with the wives, Patricia Keck and Cora Keck. Both wives testified that Harvey Keck arranged the sales and that they received part of the proceeds. Plaintiffs also presented the county tax supervisor, who described the procedure for getting roads paved and the land ownership along Keck Drive, which effectively gave defendants veto power on any petition for paving. A real estate appraiser testified as to the diminution in value of plaintiffs\u2019 land as a result of the lack of paving; plaintiffs themselves introduced other evidence of damages. Plaintiffs also testified that a neighborhood petition to get Keck Drive paved had been torn up by Harvey Keck.\nDefendants offered the testimony of Harvey Keck, who denied any promises or other representations concerning the paving of Keck Drive. Several other property owners in the development testified that defendants had made no representations to them concerning paving the road.\nThe jury found that Harvey Keck had perpetrated fraud in connection with the sale of land to each plaintiff, and that he committed unfair and deceptive trade practices in each instance, all the while acting as agent for Kelly, Cora and Patricia Keck. From judgment on this verdict, defendants appeal.\nI\nOne of the plaintiffs testified that the deceased, Kelly Keck, told him that he left it to his son, Harvey Keck, to handle the proceedings concerning Keck Drive. Defendants objected that the evidence should have been excluded under N.C. Gen. Stat. \u00a7 8-51 (1981), the dead man\u2019s statute. However, defendants had, during the course of discovery, served interrogatories on each plaintiff asking what promises or statements Kelly Keck made to them concerning paving Keck Drive. Plaintiffs responded substantially in accord with the testimony defendants now find objectionable. We have recently held, in an identical situation, that service by defendants of interrogatories concerning transactions or communications with the deceased, which elicit without objection the otherwise incompetent evidence, constitutes a waiver by defendants of the protection of G.S. \u00a7 8-51. Wilkie v. Wilkie, 58 N.C. App. 624, 294 S.E. 2d 230, disc. rev. denied, 306 N.C. 752, 295 S.E. 2d 764 (1982); see also Hayes v. Ricard, 244 N.C. 313, 93 S.E. 2d 540 (1956). Wilkie clearly controls, and this assignment must accordingly be overruled.\nII\nPlaintiffs served certain interrogatories on defendants. Since the Complaint prayed for punitive damages, defendants moved for a protective order \u201cuntil such time as it is determined the issue of punitive damages is for the jury,\u201d and further sought a protective order on the grounds that the answers might tend to be incriminatory. Defendants assign error to the denial of this motion.\nAlthough some earlier cases have apparently held that defendants may properly refuse to answer questions which may subject them to a civil penalty, it is clear even under those cases that the initial burden is on the defendant to show some actual potential prejudice; the matter may not rest with the ipse dixit of the defendants. Allred v. Graves, 261 N.C. 31, 134 S.E. 2d 186 (1964). The cases under our new Rules of Civil Procedure indicate that defendant must at least \u201cassist the court by pushing the door even a tiny bit ajar so as to disclose some rational grounds for believing that a real danger of self-incrimination\u201d exists. Johnson County Nat\u2019l Bank and Trust Co. v. Grainger, 42 N.C. App. 337, 342, 256 S.E. 2d 500, 503, disc. rev. denied, 298 N.C. 304, 259 S.E. 2d 300 (1979). This is certainly true for potentially incriminatory answers. Id. Assuming that defendants could properly object to what appear to this Court to be innocuous questions, they have failed to provide any justification other than some vague \u201cbelief\u2019 to support such an objection. This assignment of error is therefore without merit.\nIII\nThe court denied the pretrial motion of defendants Cora Keck and Patricia Keck for summary judgment on the claims against them. These defendants contend that no actual representations or other acts of fraud were committed by them.\nOn motion for summary judgment, the movant has the burden of showing that there is no issue of triable fact. Sharpe v. Quality Education, Inc., 59 N.C. App. 304, 296 S.E. 2d 661 (1982). The facts asserted by the answering party must be accepted as true. Norfolk and Western Ry. Co. v. Werner Industries, Inc., 286 N.C. 89, 209 S.E. 2d 734 (1974). The movant\u2019s burden in an action for fraud is especially heavy, since state of mind is usually at issue. Johnson v. Phoenix Mutual Life Ins. Co., 300 N.C. 247, 266 S.E. 2d 610 (1980).\nPlaintiffs proceeded on the theory that the wives were liable as principals for fraud perpetrated by Harvey Keck as their agent.\nThe general rule is that a principal is responsible to third parties for injuries resulting from the fraud of his agent committed during the existence of the agency and within the scope of the agent\u2019s actual or apparent authority from the principal, even though the principal did not know or authorize the commission of the fraudulent acts.\nVickery v. Olin Hill Construction Co., 47 N.C. App. 98, 102, 266 S.E. 2d 711, 714, disc. rev. denied, 301 N.C. 106, \u2014 S.E. 2d \u2014 (1980) (quoting Norburn v. Mackie, 262 N.C. 16, 23, 136 S.E. 2d 279, 284-85 (1964)). A husband is not his wife\u2019s agent simply because of the marital relationship; but only \u201cslight evidence\u201d of agency suffices to charge her as a principal, when \u201cshe received, retains, and enjoys the benefits of a contract.\u201d Norburn v. Mackie, 262 N.C. at 23, 136 S.E. 2d at 284; Passmore v. Woodard, 37 N.C. App. 535, 246 S.E. 2d 795 (1978) (retention of benefits from a contract sufficient).\nDefendants admitted in their answers to plaintiffs\u2019 interrogatories that Harvey Keck acted as Cora Keck\u2019s and Kelly Keck\u2019s agent. The Complaint further alleged that he acted as agent for his wife, Patricia Keck, and that the deeds for all the lots purchased by plaintiffs were signed by Harvey Keck and Patricia Keck. In her motion for summary judgment, Patricia Keck did not deny that she had received and retained benefits from these sales of entireties property. The Complaint contained ample allegations of misrepresentations by Harvey Keck. Movants\u2019 forecast of evidence does not establish plaintiffs\u2019 lack of a right to relief as a matter of law. Accordingly, the trial court properly denied these motions for summary judgment. Moreover, the admissions of both femme defendants at trial that they did in fact receive and retain proceeds of the subject sales substantiate the trial court\u2019s ruling.\nIV\nDefendants next contend, relying on the liberal provisions of N.C. Gen. Stat. \u00a7 1A-1, Rule 15(a) (1983), that the trial court\u2019s denial of their motions to amend constituted reversible error. Approximately eighteen months after the Complaint was filed, the trial court denied defendants\u2019 motions to add the defenses of the Statute of Frauds and the statute of limitations.\nRulings on motions to amend after the expiration of the statutory period are within the discretion of the trial court; that discretion is clearly not abused when granting the motion would be a futile gesture. Smith v. McRary, 306 N.C. 664, 295 S.E. 2d 444 (1982). Therefore, the trial court did not abuse its discretion in denying leave to amend to add the Statute of Frauds defense, since the Statute of Frauds is no bar to an action to recover the difference between the actual value of real property and the value as represented, based on fraudulent misrepresentations in the sale of the property. Kent v. Humphries, 303 N.C. 675, 281 S.E. 2d 43 (1981) (statute bars only enforcement of the invalid contract); Horne v. Cloninger, 256 N.C. 102, 123 S.E. 2d 112 (1961) (rights of parties to a fraudulent transaction); see generally An-not., 13 A.L.R. 3d 875, 936 (1967). Even if the plaintiffs had pursued their claim for specific performance of the alleged oral contract to pave the road, the statute would have been no defense. Overstreet v. Brookland, Inc., 52 N.C. App. 444, 279 S.E. 2d 1 (1981).\nDefendants also moved for leave to add a statute of limitations defense to their Answer to the Placers\u2019 claim, arguing that since the Placers purchased in 1976, their right of action had expired by 1980, when the Complaint was filed. The three-year statute of limitations for fraud or mistake does not commence to run, however, \u201cuntil the discovery by the aggrieved party of the facts constituting the fraud or mistake,\u201d N.C. Gen. Stat. \u00a7 1-52(9) (1983), or until the facts should have been discovered in the exercise of due care. Feibus & Co. v. Godley Constr. Co., 301 N.C. 294, 271 S.E. 2d 385 (1980), reh\u2019g denied, 301 N.C. 727, 274 S.E. 2d 228 (1981). The Complaint and various discovery papers reveal that representations were made to the Placers until 1979, and no evidence in the record, aside from defendants\u2019 general denials, suggests anything different. On this record, we hold that the trial court did not abuse its discretion in denying defendants\u2019 motions. Assuming, arguendo, that it did, defendants have failed to show that a different result would have been reached had the motions been granted. N.C. Gen. Stat. \u00a7 1A-1, Rule 61 (1983); Responsible Citizens v. City of Asheville, 308 N.C. 255, 302 S.E. 2d 204 (1983). This assignment is, therefore, overruled.\nV\nDefendants also assign error to the denial of a motion for summary judgment in favor of Harvey Keck. The motion, apparently addressing all claims by all parties, was supported only by Harvey Keck\u2019s affidavit stating that plaintiffs Weaver had actually bought their property from one Wade Coble. Woodrow Weaver\u2019s counteraffidavit stated that he had purchased the property from Keck. No affidavit or other testimony by Coble appears in the record. The credibility of the sharply conflicting testimony of opposing witnesses was at issue. Summary judgment against plaintiffs was thus inappropriate and correctly denied. See Bone Int'l Inc. v. Brooks, 304 N.C. 371, 283 S.E. 2d 518 (1981); North Carolina Nat\u2019l Bank v. Burnette, 297 N.C. 524, 256 S.E. 2d 388 (1979).\nDefendants argue for the first time on appeal that this motion should have been granted because of the statute of limitations bar against the Placers. Assuming, arguendo, that this argument may now be heard, for the reasons discussed in the preceding section, it is equally without merit.\nVI\nAt the close of plaintiffs\u2019 evidence and at the close of all the evidence, defendants moved unsuccessfully for directed verdict. The motion at the close of plaintiffs\u2019 evidence was as follows:\nYour Honor, at the close of the plaintiffs\u2019 evidence, defendants move for a directed verdict in their favor, and I move on the following grounds: There are three causes of action alleged in the complaint by the plaintiffs, the first one being under contract and for damages, the second being under contract and for specific performance, and the third for unfair trade practices, and they also ask for punitive damages in the \u2014in their prayers for relief.\nThe second motion set forth the same grounds. Defendants contend the trial court erred in denying their motions. We disagree.\n\u201cA motion for a directed verdict shall state the specific grounds therefor.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 50(a) (1983). \u201cHowever, the courts need not inflexibly enforce the rule when the grounds for the motion are apparent to the court and the parties.\u201d Anderson v. Butler, 284 N.C. 723, 729, 202 S.E. 2d 585, 588 (1974). But the only thing \u201capparent\u201d from the motions in this record is the defendants\u2019 awareness of the causes of action against them. This Court has cautioned litigants in the past to be sure to include their specific grounds for directed verdict in the record. Davis v. Peacock, 10 N.C. App. 256, 178 S.E. 2d 133 (1970), cert. denied, 277 N.C. 725, 178 S.E. 2d 832 (1971). When a specific ground is not stated in the original motion, it cannot be raised on appeal. Jones v. Allred, 52 N.C. App. 38, 278 S.E. 2d 521, aff\u2019d, 304 N.C. 387, 283 S.E. 2d 517 (1981) (per curiam). Even the sufficiency of the evidence cannot be raised for the first time on appeal. Wheeler v. Denton, 9 N.C. App. 167, 175 S.E. 2d 769 (1970); see also Oxendine v. Moss, 64 N.C. App. 205, 306 S.E. 2d 831 (1983). On appeal, defendants argue several grounds, including the sufficiency of the evidence, which were not advanced at trial. They are, therefore, not properly before this Court.\nHowever, even if we do consider the sufficiency of the evidence, we find ample evidence that Harvey Keck knowingly made false statements to each plaintiff concerning present facts \u2014 that is, his consultations with the State regarding pavement, that the representations were made in the course of negotiations, and that plaintiffs were thereby induced to purchase to their damage. These also supported the unfair trade practices claim. This evidence, taken in the light most favorable to plaintiffs, was sufficient that reasonable men might form divergent opinions as to its import, and the motions were therefore properly denied. Smith v. McRary. Overstreet v. Brookland, Inc., on which defendants rely, clearly does not control. There, plaintiffs presented no evidence that at the time of the sale defendant had any other intent than to do what he had promised in the future. Here, on the other hand, plaintiffs\u2019 evidence showed that at the time of the sale defendants represented that they were presently taking actions which they were in fact not taking, and that they intended to do that which they in fact had no intention to do (and later actively blocked).\nVII\nDefendants moved for summary judgment with respect to claims against Harvey Keck as the executor of the estate of Kelly Keck, based on N.C. Gen. Stat. \u00a7 28A-19-3(a) (Supp. 1983), which operates as a permanent bar to claims \u201cnot presented to the personal representative ... by the date specified in the general notice to creditors. . . .\u201d As the moving party, defendants bore the burden of showing that they had a complete defense as a matter of law. See Ballinger v. Dept. of Revenue, 59 N.C. App. 508, 296 S.E. 2d 836 (1982), cert. denied, 307 N.C. 576, 299 S.E. 2d 645 (1983). No general notice to creditors appears in the record, and defendants do not mention anywhere when, if ever, one was published. Defendants thus failed to carry their burden and there is no reversible error in the denial of this motion for summary judgment.\nVIII\nDefendants assign error to numerous portions of the charge. Objection to most of these errors was waived, however, by operation of Rule 10(b)(2) of the Rules of Appellate Procedure (Supp. 1983):\nNo party may assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly that to which he objects and the grounds of his objection; provided, that opportunity was given to the party to make the objection out of the hearing of the jury and, on request of any party, out of the presence of the jury.\nFailure to make contemporaneous objection prevents the court from recalling the jury to correct allegedly prejudicial errors. See General Rules of Practice for the Superior and District Courts, Rule 21 (Supp. 1983). Such failure constitutes a waiver of the right to challenge the instructions on appeal. City of Winston-Salem v. Hege, 61 N.C. App. 339, 300 S.E. 2d 589 (1983); State v. Ellers, 56 N.C. App. 683, 289 S.E. 2d 924 (1982). Defendants had ample opportunity to object, and the court took pains to inform counsel when such objections would be heard.\nThe only objection registered by defense counsel was the following:\nYour honor, we object to the charge of the court \u2014 and this is for the record because we have already made the request-concerning the unfair trade practice issue and requested at that time and renew it that the court charge as the defendants raised it in their pretrial order.\nThe objection was overruled. No request for an unfair trade practice instruction was submitted by defendants. Defendants did apparently request that certain unfair trade practices issues be submitted to the jury, but they do not argue now that the issues submitted were in any way erroneous.\nAssuming, arguendo, that the cited objection went to the instructions given on unfair trade practices, we discern no prejudicial error. In unfair trade practices cases, the jury need only find whether the defendant committed the acts alleged; it is then for the court to determine as a matter of law whether these acts constitute unfair or deceptive practices in or affecting commerce. Hardy v. Toler, 288 N.C. 303, 218 S.E. 2d 342 (1975). The trial court substantially followed the pattern instructions in this respect. See N.C.P.I. \u2014 Civil 813.21 (1981). Before doing so, however, it instructed the jury as follows: \u201cI instruct you that a representation to a prospective purchaser of land on an unpaved road that there are existing immediate plans to pave that road made falsely or in reckless disregard of the truth is an unfair or deceptive trade practice.\u201d This instruction was unnecessary. Defendants contend it was \u201cperemptory,\u201d but we fail to see how the court could preempt itself on a question of law. Jurors often go into the jury room with knowledge of the consequences of their decisions, for example, in capital cases. The court carefully and repeatedly instructed that there could be no double recovery, and it nowhere mentioned the possibility of treble damages. While the language should have been omitted, we find no prejudicial error when construing the charge as a whole.\nDefendants also urge the application of the \u201cplain error\u201d rule to the charge. Regardless of the rule\u2019s applicability to this case, there is clearly no fundamental error which would justify its invocation. In re Will of Maynard, 64 N.C. App. 211, 307 S.E. 2d 416 (1983).\nIX\nPlaintiffs cross appeal and urge reversal of an order denying their motion to dismiss defendants\u2019 appeal for failure to timely post the proper appeal bond. The record indicates that an adequate undertaking has been posted. N.C. Gen. Stat. \u00a7 1-285 (1983). The docket of this Court reveals that all bonds and fees have been paid. Our decision in favor of plaintiffs on defendants\u2019 appeal renders this appeal moot in any event.\nWe conclude that no prejudicial error appears from the record before this Court.\nNo error.\nJudges WELLS and WHICHARD concur.", "type": "majority", "author": "BECTON, Judge." } ], "attorneys": [ "David I. Smith, for defendant appellants.", "James F. Walker and H. Clay Hemric, Jr., for plaintiff ap-pellees." ], "corrections": "", "head_matter": "RONALD D. LEE, PAMELA L. LEE, WOODROW W. WEAVER, TOMMIE L. WEAVER, STEPHEN E. COOKE, WILMA F. COOKE, ROBERT PLACER and CLAIRE PLACER v. HARVEY L. KECK, Individually, and wife, PATRICIA T. KECK, CORA G. KECK and HARVEY L. KECK, Executor of the Estate of KELLY H. KECK\nNo. 8315SC281\n(Filed 15 May 1984)\n1. Evidence 8 11.8\u2014 waiver of right to rely on dead man\u2019s statute\nService by defendants of interrogatories concerning transactions or communications with the deceased, which elicited without objection otherwise incompetent evidence, constituted a waiver by defendant of the protection of G.S. 8-51 in an action for fraud and unfair trade practices.\n2. Rules of Civil Procedure \u00a7 33\u2014 denial of protective order \u2014 failure of defendant to show actual potential prejudice\nDefendant failed to meet his burden of showing some actual potential prejudice in the denial of defendants\u2019 motion for a protective order after being served with interrogatories \u201cuntil such time as it is determined the issues of punitive damages is for the jury,\u201d on the grounds that the answers might tend to be incriminatory.\n3. Fraud \u00a7 9.1\u2014 defendant-wives liable as principals for fraud perpetrated by their agent\nThe evidence was sufficient to deny defendant-wives\u2019 motion for summary judgment where plaintiffs proceeded on the theory that the wives were liable as principals for fraud perpetrated by Harvey Keck as their agent and where defendant-wives admitted in their answers to plaintiffs\u2019 interrogatories that Harvey Keck acted as their agent; where the complaint alleged that Harvey Keck acted as agent for his wife, Patricia Keck, and that the deeds for all the lots purchased by plaintiffs were signed by Harvey Keck and Patricia Keck; where in her motion for summary judgment, Patricia Keck did not deny that she had received and retained benefits from the sale of entireties property; and where the complaint contained ample allegations of misrepresentations by Harvey Keck.\n4. Frauds, Statute of \u00a7 6\u2014 statute of frauds not applying to action to recover difference between actual value and value as represented of real property\nThere was no error in the denial of defendants\u2019 motion to amend their answer to add the statute of frauds as a defense since the statute of frauds is no bar to an action to recover the difference between the actual value of real property and the value as represented, based on fraudulent misrepresentations in the sale of property.\n5. Limitation of Actions \u00a7 8.3\u2014 statute of limitations for fraud or mistake\nThe three-year statute of limitations for fraud or mistake does not commence to run \u201cuntil the discovery by the aggrieved party of the facts constituting the fraud or mistake,\u201d G.S. 1-52(9), or until the facts should have been discovered in the exercise of due care. Therefore, in an action for fraud, the trial court did not err in failing to allow defendants to amend their complaint to allege the statute of limitations as a defense where the complaint reveals that representations were made to the plaintiffs until 1979 and their complaint was filed in 1980.\n6. Fraud \u00a7 12; Unfair Competition \u00a7 1\u2014 sufficiency of evidence\nThe trial court properly denied defendants\u2019 motion for directed verdict at the close of all the evidence in an action for fraud and unfair trade practices where there was evidence that Harvey Keck knowingly made false statements to each plaintiff concerning the paving of a road in their development \u2014 that is, his conversations with the State regarding pavement, that the representations were made in the course of negotiations, and that plaintiffs were thereby induced to purchase to their damage.\n7. Executors and Administrators \u00a7 21\u2014 failure to put notice to creditors in record \u2014 failure to prove lack of notice to estate of tort claim defense\nDefendants failed to show that they had a complete defense to the claims against Harvey Keck as the executor of the estate of Kelly Keck based on G.S. 28A-19-3(a) where there was no notice to creditors in the record, and defendants did not mention anywhere when, if ever, one was published.\n8. Appeal and Error \u00a7 31.1\u2014 failure to object to charge \u2014 waiver of errors\nFailure to make a contemporaneous objection to portions of the jury charge constituted a waiver of the right to challenge the instructions on appeal. App. R. 10(b)(2).\nAPPEAL by defendants from McLelland, Judge. Judgment entered 30 July 1982 in Superior Court, ALAMANCE County. Heard in the Court of Appeals 9 February 1984.\nDavid I. Smith, for defendant appellants.\nJames F. Walker and H. Clay Hemric, Jr., for plaintiff ap-pellees." }, "file_name": "0320-01", "first_page_order": 352, "last_page_order": 363 }